The People of
the State of New York, Plaintiff,
against
Salim Ibrahim, Defendant.
|
2014BX037216
Appearances of Counsel
The People — Robert T.
Johnson, District Attorney, Bronx County, by Joelle P. Morabito, Assistant District
Attorney
Defendant — Law Office of Jon M. Silveri, by Jon M. Silveri
Armando Montano, J.
Defendant is charged with one count of Endangering the Welfare of a Child (PL
§ 260.10(1)).
Defendant moves for an order 1) dismissing the accusatory instrument as facially
insufficient; 2) directing disclosure of all agreements between any witness(es) who will
testify at trial and the People; 3) directing disclosure of all Brady material; 4) compelling
the People to provide defendant with a list of any crimes, charged or uncharged, and any
vicious or immoral acts which they intend to use at trial and requiring a hearing to
determine the admissibility of any such testimony (Ventimiglia); 5) precluding the People
from introducing at trial any evidence of defendant's prior convictions or bad acts
(Sandoval); and 6) granting defendant the right to make additional motions if made
necessary or appropriate by the People's future disclosure.
The factual
allegations in the superseding information read as follows:
Deponent is
informed by EDWIN VARGAS, that [on July 12, 2014 at approximately 9:00 AM at the
rear of 1743 Fulton Avenue, County of Bronx, State of New York], informant observed a
small male child TAWFIQ ABDUL MUMIN seated on the first floor fire escape at the
abovementioned location without any adult present.
Deponent is further
informed by informant, that informant was unable to locate a parent or guardian for the
above described child for approximately one hour before the police were notified.
Deponent states that he knocked on apartment doors and spoke with multiple
individuals in the building for approximately one hour and was unable to locate a parent
or guardian for the above mentioned child.
Deponent further states that child TAWFIQ ABDUL MUMIN appeared to
be approximately three (3) feet tall, approximately fifty (50) pounds, and appeared to be
approximately three (3) years old.
Deponent further states that defendant arrived at the police precinct at 830
Washington Avenue at approximately 10:45 AM, and defendant stated in sum and
substance I'M HIS UNCLE. I DON'T KNOW WHAT HAPPENED. I WAS SLEEPING.
Facial Sufficiency
It is well
settled that an accusatory instrument must contain facts of an evidentiary nature that
support or tend to support the crimes charged (CPL § 100.15(3); People v.
Dumas, 68 NY2d 729 (1986)) and contain non-hearsay allegations that establish, if
true, every element of the crimes charged (CPL § 100.40(1)(b)(c)). Further, an
accusatory instrument must provide reasonable cause to believe that the defendant
committed the crimes charged. CPL § 100.40(1)(b); Dumas, 68 NY2d 729.
"Reasonable cause" to believe that a defendant committed the crimes charged "exists
when evidence or information which appears reliable discloses facts or circumstances
which are collectively of such weight and persuasiveness as to convince a person of
ordinary intelligence, judgment and experience that it is reasonably likely that such
offense was committed and that such person committed it." CPL § 70.10. "In order
for the reasonable cause standard to be met, the factual portion of the accusatory
instrument must describe conduct that constitutes the crime charged." People v. Hightower, 18 NY3d
249, 254 (2011).
In reviewing an accusatory instrument for facial
sufficiency, the Court must assume the truth of the factual allegations and consider all
favorable inferences drawn therefrom. CPL §§ 100.40 and 100.15; People v. Mellish, 4 Misc 3d
1013(A) (Crim Ct, New York County 2004). The facts alleged need only establish
the existence of a prima facie case, even if those facts would be insufficient to establish
guilt beyond a reasonable doubt. People v. Jennings, 69 NY2d 103 (1986). "So
long as the factual allegations of an information give an accused notice sufficient to
prepare a defense and are adequately detailed to prevent a defendant from being tried
twice for the same offense, they should be given a fair and not overly restrictive or
technical reading." People v. Casey, 95 NY2d 354, 360 (2000).
Endangering the Welfare of a ChildDefendant argues that the superseding
information must be dismissed as facially insufficient as the facts alleged do not support
the charge of Endangering the Welfare of a Child.[*2]Specifically, defendant asserts that the superseding
information fails to allege that he had custody and control of the child at the time of the
alleged incident. Defendant also contends that his act of appearing at the precinct after
learning of what happened does not establish that 1) he was the person with whom the
child was with at the time of the incident or 2) he had custody and control of the child at
the time of the incident.
In opposition, the People first note that defendant is charged with Endangering the
Welfare of a Child (PL § 260.10(1)) which does not require a custodial, parental or
legally recognizable relationship between a defendant and the child in question. The
People aver that the facts alleged in the superseding information are more than sufficient
to make a prima facie showing for the offense charged. The People also note that
"Criminal Justice Interview Report" indicates that defendant's residence and the location
of the incident are one and the same. In addition, defendant presented himself at the
police precinct and acknowledged himself as the child's uncle. Therefore, the People
argue that it is reasonable to infer from the foregoing that 1) the child was found by the
informant on the fire escape of defendant's residence and 2) defendant was responsible
for caring for the child at the time of the incident. Leaving a small child unattended
creates a strong likelihood of harm to the child's physical, mental, or moral welfare.
Furthermore, the People argue that defendant should have been aware that harm would
likely result by falling asleep and leaving a three year old unattended with the
opportunity to leave the confines of his residence.
A person is guilty of Endangering the Welfare of a Child when "[h]e or she
knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare
of a child less than seventeen years old or directs or authorizes such child to engage in an
occupation involving a substantial risk of danger to his or her life or health." PL §
260.10(1). A person acts knowingly with respect to conduct "when he is aware that his
conduct is of such nature or that such circumstance exists." PL § 15.05(2). The
offense of Endangering the Welfare of a Child can be committed by a single act or a
"series of acts, none of which may be enough by itself to constitute the offense but each
of which when combined make out the crime." People v. Simmons, 92 NY2d
829, 830 (1998); see also, People v. Keindl, 68 NY2d 410 (1986). Actual
[*3]harm to a child is not an element of the offense of
Endangering the Welfare of a Child. People v. Simmons, 92 NY2d 829, 830
(1988). "[A] defendant must simply be aware that the conduct may likely result in harm
to a child, whether directed at the child or not." People v. Johnson, 95 NY2d 368,
372 (2000).
At the outset, this Court notes that in determining a motion for facial insufficiency, its
analysis is limited to the four corners of the accusatory instrument and in annexed
supporting depositions [FN1]
. People v. Thomas, 4 NY3d
143 (2005). As such, any information contained in the Criminal Justice Interview
Report will be disregarded by this Court.
Here, the superseding information alleges that a child, who appeared to be
approximately three years of age, was found without an adult present, seated on a first
floor fire escape of an apartment building. It is further alleged that defendant appeared at
the police precinct approximately one hour and forty-five minutes after the informant
observed the child on the fire escape. Upon arrival at the police precinct, defendant
claimed the child as his nephew. He also indicated that he was sleeping and had no
knowledge of what had transpired.
Some courts have held that the factual allegation of leaving a child unattended for a
period of time constitutes a facially sufficient charge under PL § 260.10(1).
See, People v. Watson, 182 Misc 2d 644 (Crim Ct, Bronx County 1999);
People v. Gulab, 23 Misc
3d 1123(A) (Crim Ct, Queens County 2009); People v. Reyes, 20 Misc 3d 1129(A) (Crim Ct, Kings
County 2008). However, in cases where the courts have upheld the facial sufficiency of
the charge of PL § 260.10(1), the accusatory instrument alleged facts indicating that
the respective defendants left the child alone while the child was under their care.
Clearly, leaving a child unattended constitutes the crime of Endangering the
Welfare of a Child. This Court is cognizant of the many dangers that could befall a
young child who has been left unattended, especially when that child is left unattended
on a fire escape. Were it not for the informant who happened upon the child, it is unclear
how long the child would have continued to remain unattended on a fire escape. Should
the child have fallen from the fire escape to the ground, the child would in all likelihood
have sustained serious physical injuries, permanent disabilities, or even death.
Despite the foregoing, the question remains whether reasonable cause exists to believe
that defendant committed the crime charged. This Court agrees with defendant that the
superseding information is facially insufficient to the extent that there are no facts
alleged demonstrating that the child was under defendant's care at the time of the
incident. Parents have a fundamental liberty interest in the care, custody, and control of
their children. See, Troxel v. Granville, 530 U.S. 57 (2000); Santosky
v. Kramer, 455 U.S. 745 (1982); Stanley v. Illinois, 405 U.S.645 (1972).
There is no indication of defendant having been asked by the child's parent or that he
agreed to watch over the child. Unless it can be established that defendant was in charge
[*4]of watching his nephew, his act of falling asleep at an
unspecified location [FN2]
is of no consequence. Assuming arguendo that defendant was sleeping at his residence at
the time of the incident, if defendant was not in charge of watching his nephew, he
cannot be held criminally liable for endangering his nephew's welfare. It is entirely
plausible that some other individual, such as the child's parent, was supposed to be
watching the child.
The People essentially ask this Court to assume that defendant had custody
and control of his nephew and then by falling asleep, he allowed his nephew to wander
onto the fire escape. Based upon these assumptions, this Court could infer that defendant
acted in a manner likely to be injurious to the physical, mental, or moral welfare of his
nephew. However, as noted above, there are no factual allegations from which this Court
could make any such inference. The superseding information, as currently drafted, fails
to connect defendant's act of falling
asleep at an unspecified location with his
nephew's physical, mental, or moral welfare. Without more, this Court cannot reasonably
infer from the fact that defendant went to the police precinct to retrieve his nephew that
he knowingly placed the child in circumstances that would likely be injurious to him.
Holding otherwise would amount to nothing more than rank speculation. When viewed
in the light most favorable to the People, this Court finds that the allegations set forth in
the superseding information fail to provide reasonable cause to believe that defendant
committed the crime of Endangering the Welfare of a Child.
Accordingly,
defendant's motion to dismiss the accusatory instrument as facially insufficient is granted
and the accusatory instrument is hereby dismissed without prejudice. The People are
granted leave to move to amend or otherwise cure the defects in the accusatory
instrument consistent with CPL §§ 30.30 and 170.30. In light of the dismissal
of this action, the remaining branches of defendant's motion are hereby deemed moot.
Should the People file a facially sufficient information, defendant may renew the
remaining branches of the instant motion.This constitutes the decision and order of
this Court.
Dated:March 16, 2015Bronx, New York
_______________________________
Hon. Armando Montano
Footnotes
Footnote 1:A supporting deposition
is "a written instrument accompanying or filed in connection with an information, a
simplified information, a misdemeanor complaint or a felony complaint, subscribed and
verified by a person other than the complainant of such accusatory instrument, and
containing factual allegations of an evidentiary character, based either upon personal
knowledge or upon information and belief, which supplement those of the accusatory
instrument and support or tend to support the charge or charges contained therein." CPL
§ 100.20.
Footnote 2:Contrary to the People's
assertions, the accusatory instrument fails to allege sufficient facts to place defendant at
or near the location of the incident. There is no indication from the four corners of the
accusatory instrument that defendant's residence and the location of the incident are one
and the same.